Editor’s note: This article originally stated that the Ontario Court of Appeal decision determined that peremptory challenges should be used in cases where charges were laid before Bill C-75 came into effect. It has been corrected to say the ruling determined that peremptory challenges could be used in Ontario Superior Court cases in which jury selection had begun before the bill came into effect, when several other conditions had been met.
Vague wording in a bill, which made significant changes to Canada’s legal system after the acquittal of Gerald Stanley, has resulted in confusion in courtrooms across the country.
A recent Ontario court ruling could result in dozens of serious criminal cases needing re-trials and one legal expert says it’s not clear how the new law will be consistently applied in Saskatchewan just yet.
“The indecision came about,” said Bill Roe, who practiced criminal law for almost 40 years, “because… Parliament did not make it clear whether or not this would apply to pending charges.”
On Sept. 19, 2019, Bill C-75 received royal assent. The legislation banned peremptory challenges — the ability of lawyers to veto potential jurors without providing a reason.
But a decision made in January by the Ontario Court of Appeal determined that peremptory rights should still apply to ongoing cases which meet several conditions—that the accused was charged within the exclusive jurisdiction of the Superior Court, have been indicted or elected for a trial by jury, all before Sept. 19, 2019.
Roe, a sessional lecturer at the University of Saskatchewan College of Law, said only one case has dealt with the issue in Saskatchewan and that the case isn’t binding upon other judges.
Justice R.W. Danyliuk ruled, according to court documents, that peremptory challenges could be used in that jury trial because the charges in Bill C-75 were not retrospectively applicable.
Roe said other judges could look to Danyliuk’s decision but were not restricted by it, meaning they, in theory, could rule that peremptory challenges should not be used in jury selections for ongoing cases.
Saskatchewan is among several provinces tackling the issue. Roe said that different rulings in different provinces likely mean the issue will require the Supreme Court of Canada to make the ultimate determination.
The bill places responsibility for jury selection with the presiding judge, who will ask questions from the respective counsels but leaving inclusion or dismissal up to their discretion.
A Saskatchewan law court spokesperson said she couldn’t “pull together” a number of how many cases were ongoing on Sept. 19, 2019, which could end up as jury trials, given that it would include new arrests from that day and ongoing cases.
A spokesperson for Saskatchewan Justice Minister Don Morgan said the minister was unable to comment on “how a hypothetical case may affect future legislation or justice system processes.”
Peremptory challenges received national attention during the trial of Gerald Stanley, a white man who was acquitted on Feb. 9, 2018, of killing Colten Boushie, an Indigenous man, by a jury in Battleford, Sask., with no visibly Indigenous members. Boushie’s family, at the time, said the vetoes were used to ensure that was the case.
Roe said he didn’t know if the new legislation will make jurors and jury selection less prone to biases and that Canadians would have to “wait and see” if the removal of the challenges was a good idea.
“What we want for the accused is a fair trial, that’s the cornerstone of the Canadian… system of justice.”